And Also: The characters in this book makes this not totally non-germane to the below discussion. 10 Minutes 38 Seconds In This Strange World concerns a murdered Turkish prostitute remembering her life in her last months on earth and how her friends find a way to give her a proper burial. It is very good and tells the stories of its various characters in a respect way.
[I edited this some over the last few days and will add this comment too. The Supreme Court repeatedly did not directly address this issue (as noted by the dissent referenced in a footnote) or do so in a honestly comprehensive way (as noted by the dissents in the two cases just cited). As with obscenity cases, the specifics of a case can lead you to differentiate. I find such going into the weeds interesting as this blog suggests. Thus, the second case above per the Stevens dissent -- Souter went along with the plurality's rule (thus giving it five votes, Barnes more fractured) but not its application -- the law was particularly content based. The first case as applied was not -- the public nudity rule was simply not consistently applied.]
As with other issues along the edges with an ah titillating shall we say side, nude dancing is not prime free speech material* as matters of special importance goes. In the 1970s, it was dismissed as having the "barest minimum of protected expression," anyway, the government was allowed to ban it if alcohol was served on the premises as a Twenty-First Amendment regulation. Years later, when liquor advertising was involved in the 1990s (44 Liquormart, Inc. v. Rhode Island), this was "disavowed." It was left to Justice Marshall early on to both honor a broad view of sexual expression and deem this an unconstitutional condition.**
Also, the plurality basically says that nothing much is lost if you require minimum coverage though that sort of works both ways. After all, "secondary effects" (that Souter in that later case deemed a weak fit) such as its relationship with local prostitution or crime justified banning complete nudity. The value of minimum coverage here rather unclear. If there are "secondary effects," dancing in a string bikini is unlikely to cause much more and free expression, especially when the regulation is tied to viewpoint (sexual related in some fashion), should demand a more compelling need. Bans of alcohol, zoning, some sort of buffer zone ("no touching") and more might matter more than having g-strings and pasties. Plus, more neutral.
The use of sensuality and sexuality in expressive ways, and the specific way it is done, is clearly of some importance. This goes back to the days of yore in the animal kingdom (if not before!) and humans express themselves in own way here is a variety of ways. Multiple works use touches of sensuality, including nudity, for special effect here. One famous case noted that something as coarse as "fuck the draft" has a special meaning; saying the same thing in a more polite way ("damn the draft") would not have the same effect. The power of nudity is why the government wants to cover up certain spots though over the years even sensual dancing has been targeted. Some think dance alone is too sinful.
When the Supreme Court got around to dealing with nude dancing without the complications of liquor use, the dubious line drawing that is going on here is more clear. Unless one wanted to directly address the matter with pasties and g-string like covering. Past cases made clear that dancing and even nude dancing would be protected in some fashion. Nudity in live performances is present in various plays such as Hair, so a complete ban would be problematic, at least under long-held precedents. And, public nudity itself isn't completely banned either. Under traditional rules, e.g., a billboard with a nude picture would be banned. But, it is readily admitted that now you can have a range of nudity, including non-obscene films, in a range of public places.
"Public places" is also a bit of misnomer when you are talking about clubs or the like where only consenting adults enter or even a museum with certain types of explicit art. Traditional public nudity bans dealt with unwanted viewers and children and even then arguably they are applied in at least a discriminatory way. To the degree more was banned, again, modern free speech law protects a lot of nudity with expressive conduct. OTOH, the Supreme Court just this week turned down the New Hampshire case cited here, even if New York protects topless women though I have yet to see any walking down the street.
Thus, Justice White was able to fairly easily show that the real thing being regulated here is the message promoted by the particular form of dance at issue, which amounts to forbidden viewpoint discrimination. As he notes, using a case where drug laws were deemed general in nature even if the result denied a person from practicing their religion did not apply. Toss in more respect for the expressive content of dance here (if not as in depth as the opinions below). In the later case, Justice Stevens wrote the broadest dissent to argue basically the same point. Plus, in Glen Theatre, the women weren't even on a stage or surely not lap-dancing, but in glass booths.
The oral argument in Barnes therefore needed to be more restricted in respect to the government. Traditional public nudity laws does not mean various forms of nudity was unprotected expressive conduct. The state court protected certain performances with nudity. There was some talk of a need of a "particularized message," but dance has that too and even your basic stripper often tends to have a set routine with some sort of theme. Bringing up that the women were doing it for money amounted to throwing everything to see what sticks since even Scalia noted that many performers did so for money. It wasn't cited this way, but what if the strip routine was part of some wider work such as an old murder mystery involving a stripper?
This is the sort of thing were other than "yeah come on," applying the rules would seem to cover it.
----
* Barnes also notes there are other kinds of dancing, such as social dancing and dancing for exercise. I would think, though the justices saw it somewhat differently, social dancing would have some value as a liberty of association. The concurrence there spoke of the liberty interest of dancing with friends, but as with other types of "intimate association," there is some associative interest there even if one is dancing in a crowded dance hall.
Social dancing often has some expressive content, even if it is not the driving focus of the activity. The controversial "message" of various types of dancing in that fashion arose repeatedly over the centuries. And, dancing for exercise probably is protected as a liberty in some form. But, the dancing here is clearly performance dance with expressive content and has been in some form since ancient times.
** A per curiam in 1981 clearly held that the 21A gave the state (NY) specific power to take away the liquor license (this minimum effect might be why Justice Marshall concurred in judgment) of an establishment that allowed nude dancing. Justice Stevens dissented, noting that perhaps alcoholic establishments might require special regulations, but the 21A does not provide some special blanket authorization. Such is the current rule.
It seems to me beyond doubt that a barroom striptease is "expressive." Even if relatively restrained, as are the videos in evidence here, a striptease sends an unadorned message to a male audience. It is a message of temptation and allurement coupled with coy hints at satisfaction. In a real barroom, messages would probably also flow in the opposite direction, in the form of encouraging comments to the performer from the patrons.2 These responses speak strongly to the fact that a message is being sent and received.
2. E.g., "Take it off; take it all off!"If you like the various opinions in Barnes v. Glen Theatre, especially Justice White's (who has his moments) dissent, the opinions below are something too. This was a matter of timing -- the ultimate decision was 5-4, the difference being the newly in place Souter, who concurred separately. A few years later: “After many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted,” Souter wrote. “I hope it is enlightenment on my part, and acceptable even if a little late.” But, by then six votes was still there even though Souter put forth a stricter test to determine state interests are strong enough to ban.
[I edited this some over the last few days and will add this comment too. The Supreme Court repeatedly did not directly address this issue (as noted by the dissent referenced in a footnote) or do so in a honestly comprehensive way (as noted by the dissents in the two cases just cited). As with obscenity cases, the specifics of a case can lead you to differentiate. I find such going into the weeds interesting as this blog suggests. Thus, the second case above per the Stevens dissent -- Souter went along with the plurality's rule (thus giving it five votes, Barnes more fractured) but not its application -- the law was particularly content based. The first case as applied was not -- the public nudity rule was simply not consistently applied.]
As with other issues along the edges with an ah titillating shall we say side, nude dancing is not prime free speech material* as matters of special importance goes. In the 1970s, it was dismissed as having the "barest minimum of protected expression," anyway, the government was allowed to ban it if alcohol was served on the premises as a Twenty-First Amendment regulation. Years later, when liquor advertising was involved in the 1990s (44 Liquormart, Inc. v. Rhode Island), this was "disavowed." It was left to Justice Marshall early on to both honor a broad view of sexual expression and deem this an unconstitutional condition.**
In support of these charges, the prosecution produced two police officers who testified to the following facts. Petitioner Giannini managed the Lighthouse Inn, a nightclub in San Pablo, California; petitioner Iser performed the "topless" dance featured at the Inn. Wearing tights and a transparent cape, Iser appeared on a spotlighted stage and performed various modern dances, including the "Swim." As part of the act, she removed the cape, exposing the upper portion of her body, and performed a dance called "Walking the Dog" to the music of a song by the same name. "Walking the Dog," according to the officers, consisted of petitioner Iser "wiggling around" for about 30 seconds on her hands and knees with her breasts exposed.An opinion by the California Supreme Court in the late 1960s applied basic obscenity rules and determined that dance is obviously both expressive and that it did not lose the protection such expressive conduct retains just because a striptease was involved. Plus, the average topless routine would not be obscene. The current rules by the U.S. Supreme Court hold that it is protected, but is conduct for which it is easier to regulate. Dance and something like burning a flag, however, is not quite the same thing there. One is traditional expressive conduct; the other is something that often if not expressive, but might be in a certain context. So, it is more appropriate to regulate certain conduct by more lax rules than other types.
Also, the plurality basically says that nothing much is lost if you require minimum coverage though that sort of works both ways. After all, "secondary effects" (that Souter in that later case deemed a weak fit) such as its relationship with local prostitution or crime justified banning complete nudity. The value of minimum coverage here rather unclear. If there are "secondary effects," dancing in a string bikini is unlikely to cause much more and free expression, especially when the regulation is tied to viewpoint (sexual related in some fashion), should demand a more compelling need. Bans of alcohol, zoning, some sort of buffer zone ("no touching") and more might matter more than having g-strings and pasties. Plus, more neutral.
The use of sensuality and sexuality in expressive ways, and the specific way it is done, is clearly of some importance. This goes back to the days of yore in the animal kingdom (if not before!) and humans express themselves in own way here is a variety of ways. Multiple works use touches of sensuality, including nudity, for special effect here. One famous case noted that something as coarse as "fuck the draft" has a special meaning; saying the same thing in a more polite way ("damn the draft") would not have the same effect. The power of nudity is why the government wants to cover up certain spots though over the years even sensual dancing has been targeted. Some think dance alone is too sinful.
When the Supreme Court got around to dealing with nude dancing without the complications of liquor use, the dubious line drawing that is going on here is more clear. Unless one wanted to directly address the matter with pasties and g-string like covering. Past cases made clear that dancing and even nude dancing would be protected in some fashion. Nudity in live performances is present in various plays such as Hair, so a complete ban would be problematic, at least under long-held precedents. And, public nudity itself isn't completely banned either. Under traditional rules, e.g., a billboard with a nude picture would be banned. But, it is readily admitted that now you can have a range of nudity, including non-obscene films, in a range of public places.
"Public places" is also a bit of misnomer when you are talking about clubs or the like where only consenting adults enter or even a museum with certain types of explicit art. Traditional public nudity bans dealt with unwanted viewers and children and even then arguably they are applied in at least a discriminatory way. To the degree more was banned, again, modern free speech law protects a lot of nudity with expressive conduct. OTOH, the Supreme Court just this week turned down the New Hampshire case cited here, even if New York protects topless women though I have yet to see any walking down the street.
Thus, Justice White was able to fairly easily show that the real thing being regulated here is the message promoted by the particular form of dance at issue, which amounts to forbidden viewpoint discrimination. As he notes, using a case where drug laws were deemed general in nature even if the result denied a person from practicing their religion did not apply. Toss in more respect for the expressive content of dance here (if not as in depth as the opinions below). In the later case, Justice Stevens wrote the broadest dissent to argue basically the same point. Plus, in Glen Theatre, the women weren't even on a stage or surely not lap-dancing, but in glass booths.
The oral argument in Barnes therefore needed to be more restricted in respect to the government. Traditional public nudity laws does not mean various forms of nudity was unprotected expressive conduct. The state court protected certain performances with nudity. There was some talk of a need of a "particularized message," but dance has that too and even your basic stripper often tends to have a set routine with some sort of theme. Bringing up that the women were doing it for money amounted to throwing everything to see what sticks since even Scalia noted that many performers did so for money. It wasn't cited this way, but what if the strip routine was part of some wider work such as an old murder mystery involving a stripper?
This is the sort of thing were other than "yeah come on," applying the rules would seem to cover it.
----
* Barnes also notes there are other kinds of dancing, such as social dancing and dancing for exercise. I would think, though the justices saw it somewhat differently, social dancing would have some value as a liberty of association. The concurrence there spoke of the liberty interest of dancing with friends, but as with other types of "intimate association," there is some associative interest there even if one is dancing in a crowded dance hall.
Social dancing often has some expressive content, even if it is not the driving focus of the activity. The controversial "message" of various types of dancing in that fashion arose repeatedly over the centuries. And, dancing for exercise probably is protected as a liberty in some form. But, the dancing here is clearly performance dance with expressive content and has been in some form since ancient times.
** A per curiam in 1981 clearly held that the 21A gave the state (NY) specific power to take away the liquor license (this minimum effect might be why Justice Marshall concurred in judgment) of an establishment that allowed nude dancing. Justice Stevens dissented, noting that perhaps alcoholic establishments might require special regulations, but the 21A does not provide some special blanket authorization. Such is the current rule.
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